Incapacity in the workplace falls into two distinct groups: poor work performance and and ill health and/or injury. The focus in this article will be on ill health and injury.

Incapacity for ill health or injury is when the employees' tasks are deemed a bridge too far, given the nature and extent of their illness or injury. Section 10 of Schedule 8 of the Labour Relations Act provides a useful guide to employers and employees on how to deal with this.

Incapacity is a no fault dismissal. Employers must look at all other means before looking at dismissal and even more so if the cause of the illness or injury is work related.

The first question is whether the injury or illness is permanent. If it is temporary then the employer has a greater onus to retain the employee in the interim and must look at the length of the time it will take for the employee to return to full capability.

TheAct prescribes that, if an employee's illness or injury precludes them from doing their duties, the employer can consider dismissal. BUT!! It is not as simple as saying, "they can't do their job, therefore they must go."

Where an employee is unable to perform their duties, the employer must look at:

1. The extent to which the employee can perform their duties - The employer bears the onus of looking at the duties of the employee and assessing what they are still capable of reasonably doing.

2. The extent to which the employees work circumstances and/or duties can be adapted to accommodate the employee'disability or illness this can be as simple as providing wheelchair access, modifying workspaces or even considering whether the employee can perform their duties from a remote location, especially in the case of office staff. It is about finding practical solutions that enable the worker to continue working for the company.

3. The availability of any suitable alternative work  "the employer must look internally for a position forthe employee."

When a staff member faces HIV, diabetes, cancer, MS, Parkinsons and other such diseases the employer is not simply allowed to dismiss you. The disease MUST affect your ability to perform your duties. And even when they do, the employer is encouraged to weather the storm with you - rather than kicking you to the curb.

Q: I was injured on duty and am now disabled, can they fire me?

A: The employer must follow the approach above but the onus on the employer is far greater. I had a client who broke his back at work. The employer had to keep him on the books for the eight months of surgery and rehab. The employer modified the workplace and the employee is still employed.

Q: Can they fire me if they knew I was disabled before they hired me and I am unableto perform some duties?

A: In short, no. At least not using incapacity for ill health or injuries. Theemployer knew about your disability beforehand. It would be hard for them toargue that you are now not able to fulfill those duties you were employed for.They would also have become aware of your limitations during your three-monthprobationary period and – if it is a problem – they can address them in thecorrect manner.

Q: I have a degenerative disease. Should I disclose this to potential employer?

A: This is tricky! Some employers require medicals before hand, especially if working in stressful environments. Mining, petrochemical and nuclear industries would be a prime example of this. Should you actively conceal a condition fromyour employer they may see it as dishonesty and dismiss you for misconduct.

That said - there is nothing in law that compels you to disclose existing medical conditions - but should the disease start to affect your ability to perform your duties then the employer can consider dismissing you, as long as they follow the guidelines set out above.

ri-dot